The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-07-13

Brumfeld & Brumfeld brought this
action against the Yazoo and Mississippi
Valley Railroad to recover the value of
two mules killed by the running of its
train.
The train was running at speed of
u or Is miles per hour. 1t emerged
from deep cut on down grade. When
it had gone a short distance two mules
were seen by the engineer to run toward
the track and having reached it they
began to run down the side of the track
in a frightened manner. He immedi-
ately reversed his engine, blew the
cattle alarm and the brakes were put
on Just before the train reached the
trestle the mules got on the track and
one of them was struck and thrown
under the wheels of the car and the
other ran ahead in the middle of the
track and fell through the trestle, and
was killed. The engineer apprehending
danger from the situation jumped from
the engine. The evidence as to the dis
tances that the mules were by the side of
the track and then on the track before
being struck, and the distance from
which the mules could have been seen
by the engineer, was conflicting.
The court instructed the jury for the
plaintiff as follows:
Il. The court instructs the jury that
if they believe from the evidence that
at the time the engineer jumped from
the train, that if he had remained at
his post of duty the killing of the mules
would have been averted by the stop
ping of the train, they will find for the
plaintiffs
Another instruction for the plaintiff
was as follows:
"The court instructs the jury that if
the mules ran along the track and ON
the road-bed for distance of 1926 yards,
and that the engineer could and did see
the mules at distance of 600 or 700
yards, and that the train could have
been stopped at any point short of the
place where the killing occurred, then
the law is for the plaintiff"
The jury found for the plaintiff and
the defendant appealed.
CAMPBELL, j., delivered the opinion of
the Court.
The first instruction for the plaintiffs
should not have been given. There is
no evidence tending to show that the
jumping from the train by the engineer
had any influence in producing the
death of the mules, or that his remain
ing at his post of duty could have had
any influence to avert the collision.
The testimony is that everything posi-
BILE had been done by the engineer to
stop the train, and it was after this, and
when he could do no more, and saw
al l.
circumstances threatening peril to his
own life that he leaped from the engine.
Called ON to choose between his own
safety and that of two mules lie had the
right to prefer his own, and if he stood
at his post as long as he could do any
thing effectual towards stopping the
train, and abandoned it only after hav-
ing done all he could and when it
appeared that his own safety required it,
he was not eulpable, and this should not
be made a ground of recovery against
the company. Valuable as mule is a
human being is more so in legal con-
temptation.
Another instruction for the plaintiffs
is that if the mules ran along the track
and road-bed 1926 yards, and that the
engineer could and did see them at
distance of six or seven hundred yards,
and that the train could have been
stopped before it reached the point of
collision with the mules the finding
should be for the plaintiffs. 1t is not
clear what proposition this instruction
contains. If it announces merely that
the train should have been stopped if it
could be, after the mules got ON the
track and showed q disposition to keep
on it, it is correct. If it contains the
proposition that it was the duty of the
engineer to stop the train or try to do it
as soon as he saw the mules in the
neighborhood of the road-bed, it is not
correct, and this seems to be the intent
of the instruction, for otherwise the
distance at which the mules might have
been seen was unimportant. 1t is not
the duty of the engineer to stop his
train until there is an apparent necessity
for it. Ordinarily, the discovery of ami
mails or persons near the road does not
require the stopping of the train. That
should occur only when it seems to be
necessary to avoid collision. Unless
appearances reasonably indicate danger
of the object going upon the track an
effort to stop is not required, but when
existing conditions suggest the danger
regard should be had to them, and
failure in this will constitute negligence,
of all which jury is to judge under
proper directions, and should not be
told that as matter of law failure to
stop in 1926 yards or after seeing the
mules for 600 or 700 yards was sufficient
to carry the verdict. Reversed and re
manded for new trial.